A holographic will is a handwritten will. Although it sounds like it should be one of those foil pictures that with three dimensional pictures; it is less exciting. Each state has its own rules for what makes a holographic will valid. Not all states even accept them. A handwritten will sounds like an easy way to avoid the cost and hassle of hiring an attorney to draft a complete estate plan. It might be easier for you to handwrite a will but your family may pay a greater cost to remedy any problems with your holographic will.
What is a holographic will in Texas?
While Texas accepts holographic wills as valid wills, they must satisfy specific requirements:
- Competence to make and sign a will
- The will has not been revoked
- The document was intended to be a will
- Written authenticity of the handwriting
First, the testator – the person making the will – must have the intellectual competence to make and sign a will. This means if the testator was mentally ill, intoxicated to the point of lacking competence, or adjudicated mentally incompetent, or any other legally recognized state lacking competence, the will becomes unenforceable.
Second, the testator cannot revoke the will. If the testator replaces the will by a formal will or merely revokes it, then it becomes unenforceable.
Third, the testator must have intended for the document to be a will. This means the testator had to know that the document will become a will; and intends for the will to divide his or her estate to the beneficiaries named in the will. It probably seems obvious that when a person writes a will they intend for it to be a will but sometimes that is not the case.
For example: a document written and signed as a joke; a document written and/or signed by fraud; it might be the product of anger to annoy or anger other people; or the person writing it may not have understood what the document did (even though legally the person was competent to sign legal documents).
Fourth, the handwritten will must satisfy one of two combinations of written authenticity. If the testator handwrites the will then the testator must only sign and date the document to make it valid. If the testator did not handwrite all of it (somebody else wrote it or typed it), then the testator must sign it in the presence of two witnesses. Those witnesses must sign the will in the presence of each other and the testator.
Issues with holographic wills under Texas law
As you can imagine, there are many obvious problems in proving a holographic will is valid.
Proving authenticity of the signature and handwriting
If the testator handwrote the will, it may require handwriting experts to prove the validity of the handwriting. If signed in the presence of witnesses then supporters of the will must prove the witnesses and the testator all signed together and that the witnesses are honest. The competency of the testator and the intent of the testator may be difficult to prove. (If the testator was in extreme pain, thought she was about to die and wrote a will in the hospital, was she competent?) But if the will was revoked, can proof of the revocation be proven?
Proving intent and validity of the will language
If you can prove that the holographic will is valid on face, then you have to look at the language to see if the intended language is valid and if the language divides the estate in the way the testator wanted it. It is very possible that the language will violate Texas probate law. The result is an unenforceable will. The court will act as though there is no will. (At least to the extent the language is invalid). Even where the language is valid the courts may construe it differently than what the testator intended.
To summarize this point, a will that states, “all to my wife” is probably going to receive the effect of those words. It is very clear and there is little to interpret.
However, what if testator never revoked the holographic will but the testator divorces his wife shortly before dying? Or remarries? Does the will still leave everything to the ex-wife? The new wife? Unclear and ambiguous language can make it very difficult for the court to give proper effect. This often results in family members fighting over the meaning of the will.
It is not impossible to write a valid, clear holographic will; but the likelihood is that a holographic will may result in a difficult and more expensive probate process than taking the time and money to have a formal will drafted by an estate planning attorney.
Is it worth it to rely upon a holographic will?
The cost to write a holographic will is literally a pen and paper–considerably cheaper than spending thousands of dollars finding an attorney to write an estate plan.
On the other hand, any problems with a handwritten will under Texas law likely won’t arise until after you pass away. By that time, there’s no turning back. You may leave your family with an unenforceable will or a will that results in a significantly different result than you expected. Your family may spend thousands on legal fees for attorneys to fight over your will.
The ideal solution is hiring an experienced attorney to draft an estate plan and update it with any major change to your financial or family situation. Of course, depending on the size of your estate, that could cost as much as $10,000. Fortunately, for most people the cost of a complete estate plan will typically cost less than $3000. A simple will drafted by an attorney can be purchased for $500 or less. If you do not have a large estate or minor children, your estate may not require much more than a simple will.
If you have young children, it is important to have a will in place to account for their well-being as children and protect their inheritance. It is extremely easy for parents to unintentionally draft an unenforceable will. That might trigger an expensive probate battle over the assets and a destructive child custody battle over the kids. In this case, you definitely should not rely upon a holographic will to decide their fate.